On March 29, 2016, NOVA argued as amici in Leroy S. Robinson, Jr. v. Robert A. McDonald, No. 15-0715, along with The Veterans Justice Group and Law School Clinic Directors and Professors before the U.S. Court of Appeals for Veterans Claims (CAVC). Kenneth Carpenter, Carpenter Chartered, argued on NOVA’s behalf. The veteran, represented by NOVA member Tara Goffney, disputed the content of the record before the agency (RBA), noting missing records and requesting review of the original paper file. The Secretary took the position that the veteran’s claims file was scanned into VBMS prior to BVA review, the “original record” is now the electronic file, and the underlying paper documents can no longer be reviewed by appellant’s counsel.
In its order inviting interested amici to submit memoranda of law, the CAVC noted “the issue is whether the Secretary must provide an appellant with the opportunity to inspect and copy the original paper documents in the claims file (source documents), notwithstanding VA’s scanning such documents into the Veterans Benefits Management System (VBMS) or Virtual VA (VVA) for claims adjudication purposes.”
NOVA focused its argument on CAVC’s jurisdiction to enforce its own rules, specifically in this case, Rule 10. NOVA argued VA unilaterally and illegally redefined the term “claims file” as contemplated by Rule 10 in its pleadings and inappropriately seeks a three-judge panel to amend the rule. Unlike in other appellate forums, appellee VA controls the content of the RBA and, therefore, has a fiduciary responsibility in exercising that control. Furthermore, because VA is a party to every proceeding, NOVA argued CAVC must hold VA accountable under Rule 10 because of the potential for their position to affect all cases coming before CAVC.
You can listen to the entire argument HERE.
By: Diane Boyd Rauber